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K. Govindaswamy and ors. Vs. Kamalammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1927 of 1966
Judge
Reported inAIR1968Mad89
ActsCode of Civil Procedure (CPC), 1908 - Order XXXIII, Rules 1, 2, 3 and 4
AppellantK. Govindaswamy and ors.
RespondentKamalammal
Cases Referred and Anasuyamma v. Subbareddi
Excerpt:
- - there is absolutely no difficulty in appreciating this well-established principle laid down by the learned judges in the above two decisions......by the next friend, and on such an attempt, the respondents in the said pauper original petition filed an application, i.a. no. 25 of 1966, before the learned subordinate judge, chingleput, stating that kamalammal could not continue the said application and that she should file a fresh original petition for leave to sue in forma pauperis under order xxxiii, c.p.c. the learned subordinate judge overruled this objection and dismissed the application. against this order, the present civil revision has been filed.(2) the petitioners before me are the petitioners who filed the above interlocutory application raising the preliminary objection about the continuance of the original petition in forma pauperis by kamalammal.(3) order xxxiii, under the caption 'suits by paupers' provides for.....
Judgment:
ORDER

(1) The Pauper O.P. No. 133 of 1965 was instituted by the next friend of one Kamalammal. After the filing of the petition by the next friend under Order XXXIII, C.P.C., Kamalammal became a major. She wanted to continue the application filed by the next friend, and on such an attempt, the respondents in the said pauper original petition filed an application, I.A. No. 25 of 1966, before the learned Subordinate Judge, Chingleput, stating that Kamalammal could not continue the said application and that she should file a fresh original petition for leave to sue in forma pauperis under Order XXXIII, C.P.C. The learned Subordinate Judge overruled this objection and dismissed the application. Against this order, the present civil revision has been filed.

(2) The petitioners before me are the petitioners who filed the above interlocutory application raising the preliminary objection about the continuance of the original petition in forma pauperis by Kamalammal.

(3) Order XXXIII, under the caption 'Suits by paupers' provides for various methods and conditions under which a person may institute a suit in forma pauperis. Under O. XXXIII, R. 2. C.P.C., every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any moveable or immoveable property belonging to the applicant, with the estimate value thereof, shall be annexed thereto. O. XXXIII, R. 3 provides that the application shall be presented to the Court by the applicant in person, unless he is exempted in accordance with the said rule. Order XXXIII, Rule 4, clause (2) expressly provides for the application being presented by an agent, in which contingency of course, the Court has the discretion to examine the applicant on commission, if it so requires.

(4) The contention of learned counsel for the petitioners before me is that the right to sue in forma pauperis is a privilege attached to the person and therefore, any proceeding taken by a next friend or guardian on behalf of a minor purporting to be an application under Order XXXIII, Rule 1, for the benefit of such a minor or ward, cannot be continued by such a minor or ward after he becomes a major, for the reason that it is a personal privilege. The privilege that is attached to the person in cases governed by O. XXXIII of the C.P. Code cannot be disputed. But the question is, when the next friend is suing on behalf of the minor, whom does he represent? Order XXXIII, Rule 2 gives a very clear answer to this query posed by me. The next friend furnishes the particulars in regard to the plaint in question, the schedule of the moveable or immoveable property belonging to the applicant, with the estimated value thereof. The word 'applicant' appearing in Order XXXIII, Rule 2, no doubt, refers to the minor or ward in question. Therefore, even if the next friend files an application on behalf of the minor under O. XXXIII to sue in forma pauperis, it is abundantly clear that he is doing so only for the benefit of and for the person of the minor.

(5) Learned counsel for the petitioners referred to two decisions of this Court: Subbiah v. Sundara Boyamma : AIR1928Mad278 and Anasuyamma v. Subbareddi : AIR1943Mad646 . In these two cases, the legal representatives of the erstwhile pauper desired to continue the proceedings, after the death of the person who was originally permitted to sue as a peuper. While repelling the request made by the legal representatives, the learned Judge laid down a principle of law that the right to sue being a personal privilege, it cannot be extended to the legal representatives unless they are prepared to continue the suit in the ordinary manner and not by taking advantage of the special provisions of Order XXXIII. They can have recourse to this order, if the cause of action survives by independent application. There is absolutely no difficulty in appreciating this well-established principle laid down by the learned Judges in the above two decisions. In the instant case, however, the next friend was only representing the pauper applicant. He was merely an agency to set the affairs of the minor into motion. He was declaring in the petition the properties of the minor, the particulars concerning the litigation of the minor, and such allegations and such materials of particulars do not have any relation to the persona of the next friend but referable only to the persona of the minor. If such a minor, after she attains majority, intends continuing the application which was filed by her next friend on her behalf. I do not think that the principle laid down in : AIR1928Mad278 would, in any way, prevent the minor from continuing the said application preferred by the next friend. The persona of the minor is maintained throughout, and it is for her benefit and on her behalf that the original petition has been filed, and it is that petition which is sought to be continued by the erstwhile minor who has become a major, and there is nothing in the provisions of the Civil Procedure Code which can prevent such a person, who was a minor and who became a major subsequently to continue such proceedings. In this view, the order of the learned Subordinate Judge is right.

(6) The civil revision petition is, therefore dismissed. but there will be no order as to costs.

(7) Petition dismissed.


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